American Federation of Government Employees, Local 3511 (Union) and Audie L. Murphy Memorial Veteran Hospital, San Antonio, Texas (Activity)

[ v06 p286 ] 06:0286(51)AR
The decision of the Authority follows:

6 FLRA No. 51
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3511
Union
and
AUDIE L. MURPHY MEMORIAL VETERANS
ADMINISTRATION HOSPITAL,
SAN ANTONIO, TEXAS
Activity
Case No. O-AR-163
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR ALBERT V. CARTER FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).
ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
WHEN THE GRIEVANT WAS PERMANENTLY REASSIGNED BY THE ACTIVITY FROM A
POSITION IN THE MAIL ROOM TO A POSITION IN THE HOSPITAL'S MEDICAL
RECORDS FILE UNIT. UPON RECEIVING NOTIFICATION OF HIS IMPENDING
REASSIGNMENT THE GRIEVANT AND HIS UNION REPRESENTATIVES MET WITH THE
INVOLVED MANAGEMENT OFFICIALS IN AN UNSUCCESSFUL EFFORT TO HAVE THE
DECISION RESCINDED. DURING THE COURSE OF THAT MEETING THE GRIEVANT WAS
INFORMED THAT THE REASSIGNMENT WAS BEING EFFECTED IN ORDER TO ELIMINATE
"PROBLEMS IN THE MAILROOM."
SUBSEQUENT TO THE EFFECTIVE DATE OF HIS REASSIGNMENT THE GRIEVANT
FILED A GRIEVANCE CLAIMING THAT THE ACTION VIOLATED HIS RIGHTS UNDER THE
PARTIES' NEGOTIATED AGREEMENT. THE GRIEVANCE PROGRESSED THROUGH THE
CONTRACTUAL PROCEDURE WITHOUT RESOLUTION AND WAS EVENTUALLY ADVANCED
TO
ARBITRATION.
IN HIS AWARD THE ARBITRATOR FIRST DISMISSED THE ACTIVITY'S TIMELINESS
ARGUMENT AND HELD THE GRIEVANCE TO BE A PROPER SUBJECT FOR ARBITRATION.
AS TO THE MERITS OF THE GRIEVANCE THE ARBITRATOR DETERMINED THE ISSUE
BEFORE HIM TO BE:
WHETHER THE REASSIGNMENT OF THE GRIEVANT WAS IN VIOLATION OF
APPLICABLE LAWS AND/OR THE
CONTRACT.
AFTER DISCUSSING THE ACTIVITY'S STATED REASON FOR THE CHALLENGED
REASSIGNMENT, I.E., NUMEROUS INTERPERSONAL PROBLEMS AMONG THE MAIL ROOM
STAFF, AND NOTING WITH REGRET MANAGEMENT'S FAILURE TO FULLY EXPLAIN ITS
ACTION TO THE GRIEVANT, THE ARBITRATOR REJECTED THE UNION'S CLAIM THAT
THE GRIEVANT HAD BEEN DENIED "FAIR, IMPARTIAL AND EQUITABLE TREATMENT"
AS GUARANTEED BY THE AGREEMENT. IN SO HOLDING THE ARBITRATOR CONCLUDED:
IN THE JUDGMENT OF THIS ARBITRATOR, MANAGEMENT HAS THE UNILATERAL
RIGHT UNDER THE TERMS OF
THE NEGOTIATED CONTRACT AND THE APPLICABLE LAWS GOVERNING THE
OPERATION OF THE AGENCY TO
REASSIGN EMPLOYEES WITHIN THE AGENCY AT ITS DISCRETION PROVIDING SUCH
REASSIGNMENT DOES NOT
CONFLICT WITH ANY PROVISIONS OF THE CONTRACT OR APPLICABLE LAW. I
FIND NO SUCH CONFLICT IN
THE INSTANT CASE AND IT IS MY OPINION THAT THE UNION HAS NOT CARRIED
ITS BURDEN OF PROVING
THAT MANAGEMENT DID NOT TREAT THE GRIEVANT IN A FAIR AND EQUITABLE
MANNER.
THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
2425).
IN ITS EXCEPTION THE UNION ASSERTS THAT THE ARBITRATOR'S AWARD IS
DEFICIENT BECAUSE IT IS CONTRARY TO LAW. HOWEVER, AFTER CAREFUL
EVALUATION OF THAT EXCEPTION AND THE ARGUMENTS SUPPORTING IT, THE
AUTHORITY FINDS THAT THE UNION HAS FAILED TO DEMONSTRATE IN WHAT MANNER
THE AWARD VIOLATES LAW.
ALL OF THE CONTENTIONS RAISED IN THE UNION'S EXCEPTION CENTER UPON
CERTAIN OF THE TESTIMONY BEFORE THE ARBITRATOR AND THE MERITS OF THE
CONTRACTUAL ISSUES SUBMITTED TO HIM. NONE OF THOSE CONTENTIONS
ESTABLISHES THAT THE AWARD VIOLATES LAW. RATHER, THEY CONSTITUTE
DISAGREEMENT BY THE UNION WITH THE ARBITRATOR'S FINDINGS AND CONCLUSIONS
REGARDING THE MERITS OF THE GRIEVANCE. SUCH DISAGREEMENT DOES NOT
PROVIDE A BASIS FOR FINDING AN ARBITRATION AWARD DEFICIENT UNDER 5
U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S RULES AND
REGULATIONS. FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION AND
FEDERAL AVIATION ADMINISTRATION, ALBUQUERQUE AIRWAY FACILITIES SECTOR,
SOUTHWEST REGION, 2 FLRA NO. 85(1980); VETERANS ADMINISTRATION
HOSPITAL, PERRY POINT, MARYLAND AND LOCAL 331, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, 3 FLRA NO. 34(1980).
FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.
ISSUED, WASHINGTON, D.C., JULY 16, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ U.S.C. 7122(A) PROVIDES:
(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW THE AUTHORITY FINDS THAT
THE AWARD IS DEFICIENT--
(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;
OR
(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR
LABOR-MANAGEMENT RELATIONS;
THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
APPLICABLE LAWS, RULES, OR REGULATIONS.